Absolute Divorce-Family Law § 7-103

• Jurisdiction: Maryland

III. ABSOLUTE DIVORCE-FAMILY LAW § 7-103⁶³

A. Adultery-Fam. Law § 7-103(a)(1)

1. Definition

Adultery is not defined in the statute. The common law generally defines adultery as voluntary sexual intercourse, which involves some degree of penetration of the female organ by the male organ, with a person other than the offender's spouse. See the definition in Flood v. Flood.⁶⁴ Maryland's appellate courts have not yet had the opportunity to decide whether extramarital sexual infidelity between two persons of the same sex constitutes "adultery" under Maryland family law. However, the Maryland Attorney General has opined that Maryland courts would recognize same-sexual infidelity as adultery, constituting grounds for divorce without the requirement of living separate and apart for a year. 100 Op. Att'y Gen. 105 (July 24, 2015).

2. Evidence required

The evidence must affirmatively establish that adultery was committed, since nothing less than the carnal act itself can lay the foundation for adultery. Direct proof is usually unobtainable and is not required.⁶⁵

(1) An actual act of adultery does not have to be witnessed.⁶⁶

(2) Proof of adultery with circumstantial evidence, requires a showing of:

(a) a disposition on the part of the defendant and the alleged paramour to commit adultery, and

(b) an opportunity to commit the offense.⁶⁷

(3) The standard of proof is by a "preponderance of the evidence," but the evidence required must exclude any reasonable possibility of innocence.⁶⁸ "Something more than mere suspicion or indiscretion is necessary to overcome the presumption of innocence."⁶⁹

(4) Opportunity is rarely an insurmountable problem since evidence that the offending spouse has been alone with the paramour is enough to prove opportunity. Proof of repeated visits to the guilty party's home by the paramour are clearly sufficient to show opportunity.⁷⁰

(5) The evidence of an adulterous disposition may be established by the conduct of the guilty party and the paramour, which consists of some public display of intimacy or indifference to propriety which is observed by others.⁷¹

(a) However, a public display of intimacy observed by others is not essential if the facts and circumstances are sufficient to warrant an inference of a disposition to commit adultery.⁷² Example: In the Abare case, fairly numerous visits where no one else was present, lasting far into the night, were considered sufficient evidence to show disposition. But compare Abare with Borne v. Borne⁷³ and Riley v. Riley.⁷⁴

(b) An adulterous disposition may be inferred from the conduct of the parties and the surrounding circumstances.⁷⁵ However, this does not necessarily mean that an adulterous disposition can be assumed because two people live in the same house. In Laccetti v. Laccetti,⁷⁶ the court said, "adultery cannot be predicated on the assumed natural inclination of persons living in the same abode, without any evidence whatsoever of any manifestation of such an inclination."⁷⁷

(c) The court may find disposition to commit adultery by judging the demeanor and credibility of witnesses.⁷⁸ However, in the Laccetti case,⁷⁹ the testimony did not present enough facts, and credibility by itself was not enough to support a finding of disposition to commit adultery.⁸⁰

(d) Abundance of opportunity may show disposition.⁸¹

(6) The testimony of private detectives, although not entitled to more weight than that of the parties to the suit, when corroborative of other testimony or corroborated by other testimony, is sufficient to lay the foundation for circumstantial evidence.⁸² In Abare v. Abare,⁸³ Patzschke v. Patzschke,⁸⁴ and Pontorno v. Pontorno,⁸⁵ private detectives corroborated the facts from which a disposition to commit adultery was inferred.

B. Desertion-Fam. Law § 7-103(a)(2)

Earlier cases sometimes refer to "abandonment." The word "desertion" is substituted for the word "abandonment" by the Code revisors. To succeed on a complaint based on desertion, a plaintiff must show that the desertion continued for 12 months without interruption before the filing of a complaint for absolute divorce, the desertion was deliberate and final, and there is no reasonable expectation of reconciliation.

1. Elements

The primary elements of this ground are:

(1) the ending of cohabitation,⁸⁶

(2) the intention of the offending party to desert,⁸⁷

(3) the continuation of the desertion for 12 months prior to the filing of the suit, and

(4) a deliberate and final separation which is beyond any reasonable expectation of reconciliation.⁸⁸

(5) The separation must also be unjustified.⁸⁹ But, the justification for leaving may be proved by the one leaving.⁹⁰

(a) Nagging and bickering do not justify leaving,⁹¹ nor does jealousy.⁹²

(b) Attention to another person short of proof of adultery may justify the other spouse in leaving and keep him or her from being guilty of abandonment.⁹³

(6) The leaving must be the deliberate act of the defendant done with the intent to terminate the marriage relationship.⁹⁴

(7) The separation and intent to desert must coexist for the duration of the statutory period, but they do not have to begin at the same time.⁹⁵

(a) A party who consents to a separation has not been abandoned.⁹⁶

2. Two types of desertion

The Supreme Court of Maryland has recognized two types of desertion: actual and constructive.

a. Actual desertion

If the offending party either leaves or expels the other spouse, by a forcible ejection or conduct which is equivalent to a forcible ejection, the desertion is actual desertion.⁹⁷ The Harding case⁹⁸ is consistently, although incorrectly, used in support of a finding of "constructive" desertion.

Refusal to follow one's husband has traditionally constituted a desertion unless a change of domicile is "unreasonable."⁹⁹ But Fam. Law § 4-201, enacted in response to the equal rights amendment, provides that the domicile of one spouse does not fix by operation of law the domicile of the other spouse. The effect of this statute on a wife's failure to follow her husband, as a ground for divorce, awaits judicial interpretation. However, the courts would probably apply a reasonableness standard to the facts and circumstances underlying the change of residence and decision not to follow, and rule accordingly.

b. Constructive desertion

Ordinarily, when a person's conduct compels the other to leave, it is constructive desertion. For an historical perspective and analysis of constructive desertion, see Myerberg, Constructive Desertion in Maryland.¹⁰⁰ Some categories of marital misconduct which might give rise to constructive desertion are as follows:

(1) Cruelty or intolerable misconduct

See also Section IV.B.2. The burden of proof.

(1) When constructive desertion was first given legal recognition, cruelty, accompanied by the intention of the offending party to terminate the marriage, constituted constructive desertion.¹⁰¹

(2) It is now settled law that "cruelty" as a basis for constructive desertion may be based on conduct which is sufficient for a limited divorce on the ground of cruelty, or a pattern of misconduct which renders the continuation of the marital relationship impossible (i.e., the complaining spouse is unable to preserve his or her health, safety, or self-respect).¹⁰² Further, it has now been held it is not necessary to prove the guilty spouse entertained a settled purpose to drive the innocent spouse from the home.¹⁰³ Finally, it has been held that conduct, to be considered intolerable, need not cause the innocent spouse to leave following closely upon the heels of some precipitous event; pointing out the "battered women's syndrome," the court has shown that spouses often remain in intolerable situations long after another person might have left.¹⁰⁴ Adverse medical effects do not have to be shown in every case.¹⁰⁵
(3) As implied above, it appears that when legal cruelty is established, the intent to desert is either inferred from the evidence as the natural consequence of the offending party's cruelty,¹⁰⁶ or is taken for granted without inquiring into the intent of the offending spouse. This seems to be what the court did in Kruse v. Kruse¹⁰⁷ and Nicodemus v. Nicodemus.¹⁰⁸ It has been suggested that the Kruse case created bare cruelty, coupled with the passage of the statutory period, as a ground for an absolute divorce.¹⁰⁹

(2) Unjustified refusal of intercourse

A permanent and irrevocable and deliberate refusal to continue marital relations may be constructive desertion.¹¹⁰

(1) Where the cessation of marital relations is due to the persistent harsh treatment of the other spouse, it is not desertion.¹¹¹

(2) It is difficult to obtain evidence and corroboration of such an intimate matter. Sleeping in separate bedrooms does not substantiate a charge of refusal of intercourse.¹¹² However, when an allegation that the wife had moved into a separate room was corroborated by showing that she had placed locks on the doors and had the windows nailed down, constructive desertion was found.¹¹³

(3) Unjustified refusal to maintain separate home

An unjustified refusal to maintain a home separate and apart from parents or other relations may be constructive desertion. Where a husband who is financially able fails to provide a home separate and apart from parents or other relations, his wife is justified in leaving and charging him with constructive desertion.¹¹⁴

Under the equal rights amendment, the duty of the husband to provide a home for his wife free from unwarranted interference from members of his family may also be extended to the wife. If the presence of friends and relatives in the home hampers the happiness and tranquility of domestic life, regardless of who is responsible, the relatives' presence may constitute constructive desertion.

(4) Abnormal sexual demands

Any coerced performance must be regarded as "abnormal," regardless of the specific sexual acts involved, and a persistent demand...